IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0018 of 2005S

Between:

MACIU KOROICAKAU
Appellant

And:

THE STATE
Respondent

Hearing: 5th April 2005
Judgment: 6th April 2005

Counsel: Appellant in Person
Ms N. Tikoisuva for State

JUDGMENT

This is an appeal against sentence. Although the Appellant lodged his appeal a few days out of time, the learned Magistrate granted leave to appeal out of time. The Appellant was charged with two counts of robbery with violence, one count of unlawful use of motor vehicle, and one count of driving a motor vehicle without a driving licence.

He pleaded guilty on all counts on the 1st of June 2004. The facts were outlined on the 7th of July 2004. They were that on the 7th of May 2004, the complainants on Counts 1 and 2 were having tea in the balcony of their house at Vunakece Road. They then went inside the house leaving the balcony door open. They heard the sound of running steps behind them and were confronted by the Appellant and another person. Both men were wearing dark-coloured jeans and dark hooded jackets. The Appellant then began strangling the complainant on Count 1 (one Sue Walker) and demanded money and car keys. He then by force removed her gold chain and earrings, her mobile phone, sunglasses, cash and various pieces of jewellery to the total value of $2325.00. In the course of the robbery he punched the complainant on the mouth. He then took the complainant on Count 2, one Darlene Underwood into her room, gagged her with a piece of cloth and robbed her of a mobile phone and cash to the total value of $370. He and his accomplice then left the house, taking the car with them.

The police arrested the Appellant on the 12th of May 2004. He admitted the offences and named his accomplice. He had no driving licence and was charged with four offences on the charge sheet. Only the motor vehicle was recovered. It was extensively damaged and found at Naqali where it had gone off the road.

The Appellant agreed with those facts. He also admitted one previous conviction of assault occasioning actual bodily harm, for which he received a 2 year term of imprisonment in March 2002. The State has since handed me an updated list of previous convictions which includes an escaping from lawful custody conviction in May 2004, for which he received an 18 month term of imprisonment. In October 2004, I reduced this sentence to 6 months imprisonment.

In mitigation the Appellant said he was 25 years old, married with one child, earned his living as a fisherman, had committed the offence when drunk and was serving a 5 year term of imprisonment. However, there is no trace of a 5 year term imposed on him in June 2004, in his previous convictions record. I believe that he is referring to the 6 month term, imposed in 2004, for escaping.

In imposing sentence, the learned Magistrate started at 8 years imprisonment. He took into account the lack of any injuries and the guilty pleas. He also considered the assaults on the victims, the damage to the car, and the prevalence of the offence of robbery with violence. He sentenced the Appellant to 7 years imprisonment on Count 1, 5 years on Count 2 and discharged him on the remaining counts. In addition the Appellant was disqualified from holding a driver’s licence for 2 years. The custodial sentences were to be served concurrently to each other and to the prison sentence then being served.

The Appellant now says that the total sentence is harsh and excessive. He says that he pleaded guilty at the first opportunity, that he was remorseful for the harm he had caused, that he was now serving a term in excess of 7 years imprisonment because he had already served a substantial length of a term of imprisonment previously imposed, and that with daily contact with other hardened criminals, he was likely to become a hardened criminal himself. He presented his submissions in an articulate manner, and had evidently spent some time preparing his grounds of appeal and submissions.

The State opposed the appeal. Counsel said that although the learned Magistrate had erred in his approach to sentence in that he picked an excessively high starting point and considered aggravating factors on Count 4 in relation to the robbery sentence, the end result of 7 years imprisonment on Count 1 was correct in principle. She said that the total term of 7 years imprisonment was also correct in principle, and that the Appellant was fortunate to receive concurrent terms of imprisonment.

In Waisake Matahau Uluikadavu v. State Crim. App. HAA0035 of 2004, Winter J considered sentencing in cases of “home invasion” robberies with violence. In that case, the appellant and another man broke into the victim’s house, grabbed him by the collar and demanded money. He was sentenced to 8 years imprisonment. His Lordship said this about home invasions:

“Home invasions are a particularly traumatic intrusion into the lives of citizens. The most striking feature of these episodes is the sheer terror to its victims. They are set upon within the apparent safety of a private dwelling by complete strangers. These unjustified acts of terrorism by intruders within the home invade the family sanctuary and violate the sense of security that lies at the heart of each home. As such, these acts not only affect the lives of their immediate victims but also instill fear in the whole community creating a siege like mentality.”

His Lordship said that home invasion robberies deserve a starting point of between 6 to 8 years, and where no weapons were used, a starting point of 7 years imprisonment would be appropriate. He reduced the 8 year term to 6 years imprisonment. The appellant in that case was a 21 year old first offender.

Using Winter J’s guidelines, a 7 year starting point would have been appropriate in this case. The aggravating factors were the assaults on the victim, the items stolen and the obviously planned nature of the robbery. In mitigation, was his early guilty plea, his co-operation with the police, the expressed remorse, his youth and family circumstances and his fear of being influenced by others in prison. He is not a first offender and his record shows a previous offence of violence. Taking into account all these circumstances, a sentence of 7 years imprisonment is not excessive.

On Count 2, it appears that the learned Magistrate allowed substantial discount for the fact that the Appellant did not assault the victim, and that he acted in concert with his accomplice. On Count 1, he appears to have acted as the principal offender. The 5 year term is therefore not wrong in principle. On both counts, the damage done to the car is of little relevance. It would have been relevant to the unlawful use of motor vehicle charge.

The learned Magistrate ordered the sentences to be served concurrently with each other. He did not err. Consecutive sentences would have offended the totality principle, and all the charges arose out of what was one criminal enterprise. Further, he did not err when he ordered the sentence to be served concurrently with the existing term of imprisonment. Although the Appellant submits that in effect his total term was lengthened by the order, and that the 7 year term should have been backdated to the date of the imposition of his original term of imprisonment, this was not possible in law. A concurrent term of imprisonment can only run from the date it is imposed.

This appeal against sentence must therefore fail. It is dismissed.

Nazhat Shameem
JUDGE

At Suva
6th April 2005